On 9 September 1974, The Times offered its verdict on one of the most contentious political decisions of the 20th century. “There is, it turns out after all, one law for the powerful and another for the ordinary citizen,” concluded the prescient leader for the day. “Future inhabitants of the White House may calculate that the risks of illegal activity are not intolerable.”
They were talking about the pardon afforded to Richard Nixon by Gerald Ford, a decision that has, at various times, been deemed both wise and misguided. Senator Edward Kennedy had once been a critic of the decision but later awarded Ford a “Profiles in Courage” award, admitting that “once we had the benefit of hindsight and once we had the benefits of history, it became much clearer.” The problem with history is that it doesn’t have a use-by date. What seemed unwise in 1974 and then seemed wise in 2001 begins to look unwise again just 20 years later when it is even more clear that there is a badly flawed precedent for what’s happening in America right now.
Ask any 10 experts and you’ll get 11 different opinions about how the American justice system might deal with a law-breaking president. Such are the doubts that the dull consensus has become that such a president could never face justice, could never see the inside of a courtroom let alone a jailhouse. Wednesday’s testimony before the January 6th hearing might, however, have nudged the needle a little on that.
The prospect of a former president being indicted by the Justice Department has now become more real. Cassidy Hutchinson, a former advisor to Donald Trump’s fourth Chief of Staff, Mark Meadows, gave testimony that moved the whole insurrection story as close as a five to 10-second walk to the Oval Office. Wednesday morning, The New Yorker proclaimed that her testimony “should be the end of Donald Trump”.
We’re not quite there yet, though Rupert Murdoch’s evident decision to cut ties with Trump certainly removes another barrier, with Fox News notably reflecting their changed priorities during Tuesday’s coverage. This comes after Trump’s election attorney, John Eastman, had his phone seized by the FBI, whilst the Bureau has also raided the home of Jeffery Clark, the Justice Department official who had been in the vanguard of pushing the election fraud conspiracy. One can certainly understand why it might be the moment when this whole sorry affair begins to unravel.
Tuesday’s testimony was from a Trump staffer who admitted she had always intended to “represent the administration to the best of my ability and to showcase the good things that he had done for the country”. This was, in other words, an insider deep inside the administration providing the kinds of details that were vivid as well as insightful. Hutchinson, calm and precise throughout, recalled how Trump would often pull the tablecloth from the White House dinner table to send food and plates crashing to the floor, and how, when watching his Attorney General, Bill Barr, admit on TV that there was no evidence of voter fraud, he threw his meal at the wall, covering the dining room in tomato ketchup. Then there was the incident in an SUV riding back from his Capitol Hill speech when he tried to grab the steering wheel after his team refused to take him to the Capitol Building. It escalated to the point where the 45th President grabbed his lead Secret Service agent by the throat. “Tyrant Trump” screamed the headline on the New York Post (again reflecting Murdoch’s decision). For once, the tabloid Post understated matters.
As striking as it was to hear such testimony, it was also materially similar to rumours that have circulated for a long time about the bullying petulant President. More to the purpose of the inquiry, however, was learning how Trump demanded that the Secret Service stop using metal detectors to scan an armed mob (some seen to have been carrying AR-15 assault rifles) trying to get into his rally at The Ellipse because they were “not there to hurt me”. It was first-hand testimony that showed the president knew the mob was armed before he directed them to march on the Capitol Building.
There were other details almost as stunning: the President believed that Mike Pence deserved to be lynched by the mob, that he refused to act for hours before issuing a half-hearted appeal, and that the White House had known for days that trouble was looming.
Yet step back a little and what is most sobering about the day was that it took a 25-year-old, relatively junior staffer to give the kind of testimony that bigger players have thus far refused to provide. Some are understandably cautious since they might expose their culpability. Striking then to see, via video, General Michael Flynn pleading the fifth to some quite basic questions. While nothing can be legally inferred from pleading the fifth, lots can be inferred politically. Hearing him refusing to answer if he thought the violence justified does little to help the case for the defence.
By the end of the hearing, there was a strong sense that Hutchinson’s greatest service was in providing moral clarity in the service of patriotism. It’s to be seen if it increases pressure on White House counsel, Pat Cipollone, whose unwillingness to appear feels the most egregious (and senseless) given that, as described, he was one of the main actors warning the President of the illegalities around plans for January 6th. Liz Cheney doubled down on this point, tweeting on Wednesday: “It’s time for Mr Cippollone [sic] to testify on the record. Any concerns he has about the institutional interests of his prior office are outweighed by the need for his testimony.” The question now is if this becomes the inflection point when a few key figures decide which side of the story they want to be on.
Indeed, the sense of illegality was more pronounced as the session concluded. Each of these hearings has ended with a note as to what comes next. This time it wasn’t the promise of more testimony but a warning about the process. Cheney presented two examples of witness tampering in what amounted to a new thread of the whole scandal. It read like a mob movie cliche: “[A person] let me know you have your deposition tomorrow. He wants me to let you know that he’s thinking about you. He knows you’re loyal, and you’re going to do the right thing when you go in for your deposition.”
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It too felt like a challenge to those witnesses who have yet to speak and still have a chance to be on the right side of history. It was another stark reminder of Watergate where the boundary between right and wrong got confused for at least a generation. Even Ford harboured doubts, supposedly telling friends that “I know I will go to hell because I pardoned Richard Nixon”. What we’re witnessing here is that part of America that still believes in the Constitution and the law seeking to ensure that the country won’t make the same mistake twice.